Judicial Appointments and Accountability in India – An Analysis
January 3, 2022
Judiciary is the last resort for any aggrieved person, whose legal rights have been violated, to plead for ‘Justice’. In India, the Courts are seen as the place of highest justice. Undoubtedly, our Courts continue to deliver justice and punish the guilty. It is important that the Judiciary remains uninfluenced from any political dynamics. For the Judicial System to remain uninfluenced, the appointment of Judges in the Supreme Court and High Courts should be free from political influences. In India, Judges are appointed through the ‘Collegium System’.
In 2014, National Judicial Appointment Commission (NJAC) was established. Article 124A was inserted in the Constitution of India through the 99th Amendment, which created the provision of formulating the NJAC Act. Later in 2015, the NJAC was declared unconstitutional by the Supreme Court. The issue that arises is, neither the ‘Collegium System’ nor the ‘NJAC Act’ provides the solution to the problems faced by the Judiciary in the appointment of the Judges. Both the ‘Collegium System’ and ‘NJAC Act’ lacked transparency. The Act solved the problem of making the Judiciary accountable but at the same time undermines the Doctrine of ‘Separation of Powers’ violating the Constitution. The Collegium System gives a lot of autonomy to the Judiciary and makes it unaccountable. The problem needs to be addressed by reforming the system and implementing the new solution at the earliest.
Collegium System – Appointing Judges Prior to NJAC Act
The Judges are appointed to the Supreme Court and High Courts and the transfer of the Judges from one Court to another is governed by Articles 124, 217, and 222 of the Indian Constitution. The President used to consult the Chief Justice of India and other Judges to appoint the other Judges. Similarly, Judges are also transferred. This is the ‘Collegium System’. The system was first questioned in 1969, when Justice A.N Ray was elevated to the post of CJI, despite three senior judges. The consideration of seniority was an important parameter in the Collegium System.
In SP Gupta v. Union of India, popularly known as the First Judge Case, the Apex Court was of the view that the opinion of Chief Justice is not primary. Hence, the Judiciary is not accountable. The Union Government is not bound by the opinion of the Judiciary. But the Second Judge Case i.e. Supreme Court Advocates on Record Association v. Union of India, overruled the judgment and it was held opinion of the Judiciary is primary and the Executive can appoint Judges only after consulting Chief Justice. The Collegium System was given due recognition in the Third Judge Case. But Collegium System was viewed as an ailing system and attempts were made to overthrow it. Finally, in the year 2014, NJAC Act received Presidential assent.
Understanding the National Judicial Appointments Commission
National Judicial Appointment Commission, was established through Article 124A. The Appointment Commission consisted of CJI, two Senior Judges of the Supreme Court, the Union Minister of Law and Justice, and two eminent persons. The two eminent persons were appointed by the Committee consisting of Prime Minister, CJI, and Leader of Opposition, Lok Sabha, and if there is no such speaker, the leader of the single largest opposition party was included in the Committee. The Committee recommended names for the position of Judges in the Supreme Court, High Courts and also governed transfers of the Judges. This all has to be done in accordance with the rules and regulations of the NJAC Act. The recommendations were made considering indicators like seniority, ability, merit, and other criteria specified in the Act. On the basis of these recommendations, President makes appointments.
Why NJAC was necessary?
The Collegium System was seen as defective since the Judiciary was entirely independent of the Executive. However, there are certain points of contention that suggest otherwise too.
The system was opaque and the reasonableness of the appointments cannot be checked because of lack of procedure.
The Judiciary was not held accountable. The Second Administrative Reforms Commission stated, that India is the only country where the Legislature or Executive has any say in the appointment of judges.
The system lacked implementation. As a result, there are a lot of vacant posts and pending cases.
The Judges are not aware of the antecedents of the candidates. The Executive can help them here.
The system was considered unconstitutional since the Judges were appointed by President in consultation with the Judiciary and not vice-versa.
Was Judicial Appointments Commission truly a Cure?
NJAC Act solved a problem in the sense that it made the Judiciary accountable to the Executive, in terms of the appointment of Judges. But the procedure still lacked transparency. The Act has loopholes to foster evils like nepotism and favoritism. For the approval of a name for a post of a Judge, at least five have to give their assent out of a six-member Committee. Here, the majority which NJAC Act talks about is even more than what is asked in the passing of a Money Bill i.e. more than 67%. In this scenario, reaching a consensus is difficult.
The Act gives primacy importance to the Executive and Judiciary loses its independence. The Act requires the appointment of two eminent personalities but their eligibility and reasons for selection are not laid down. Thus, a person who doesn’t have the proper background would affect the functioning of the Committee. There is a high probability that there can be an abuse of power by the person in the position.
National Judicial Appointments Commission declared Unconstitutional
The Supreme Court observed that NJAC is in contravention to the theory of ‘Separation of Powers’ laid down in the Constitution. NJAC gave sufficient power to the Executive to interfere with the independence of the Judiciary. The Supreme Court relied on the judgment in Bhim Singh v. Union of India that the Constitution allows overlap of functions, as a democratic necessity. But it prohibits one branch from exercising the power of the other branch. In the present scenario, the Executive snatched essential power of the Judiciary, thus undermining Constitutional accountability.
The Court observed, CJI and other Judges are well qualified to appoint Judges, and interference of the Executive is not required; as the Court believed that the Judges are more qualified in the field of law to appoint Judges than the Executive. The Constitution lays down that one branch cannot interfere in the functioning of another branch, unless stated explicitly in the Constitution. The participation of the Executive in the appointment of Judges would undermine the theory of ‘Separation of Power.’
Article 50 of the Constitution was made part of the Basic Structure Doctrine in the Keshavananda Bharti Case. The Parliament cannot amend the basic structure of the Constitution with the help of Article 368. The NJAC Act violates Article 50 as it gives a lot of power to the Executive to interfere in the process of Judicial Appointments. Therefore, it violates the Basic Structure Doctrine. Thus, it gives enough reason to the Judiciary to declare NJAC Act unconstitutional.
The Act leads Judiciary to compromise with its independence. The Judiciary is an important institution for the functioning of democracy. The Act will not only disturb the independence of the Judiciary but will also affect rule of law, democracy, federalism, and the working of the Constitution as a whole. The independence of the Judiciary is intrinsically linked with the appointment of Judges.
NJAC Act creates a very thin line between judicial accountability and its independence. There is no country where judicial appointments are done by the Judiciary alone. In France, recommendations for the Judicial officers are made by the body, Conseil Superieur de Magistrature, to the President. The body consists of the President, Minister of Justice, four prominent figures, and twelve more people. The first half deals with the recommendations of the sitting Judges. While the other half deal with recommendations of Public Prosecutors.
In the United Kingdom, Lord Chancellor calls a Commission which consults Judges and head of Jurisdiction. On the recommendations of this Commission, appointments are made in the Supreme Court, which is notified to the Prime Minister. In Australia, the Judicial Commission through public advertisement invites ‘Expression of Interest’ from the members of Bar Councils to help in enabling the appointment of Judges in a most transparent manner. The Indian NJAC Act can incorporate these procedures to make the Act constitutionally more accurate.
The NJAC Act needs to be reformed and the inspiration for reform can be taken from foreign systems. The procedures need to be evolved to protect the independence of the Judiciary and which Executive also plays a role. The Collegium System is followed today after NJAC was declared unconstitutional. The system should be made more transparent by calling for expressions of interest and publications of reasons, including criteria, executive inputs regarding antecedents, etc. According to Mr. Soli Sorabjee, the Judiciary has to be trusted more than the Executive for appointing Judges. Thus, the Collegium System should be followed and reformed.
Editor’s Note This article discusses one of the very contemporary issues faced by the Indian Judiciary, i.e. the appointment of judges and their accountability. The author has firstly explained the collegium system of appointment of judges prior to the NJAC Act. Further, the NJAC Act and the need to enact the same has also been discussed by the author, along with its loopholes. The author has further thrown light upon the reasons as to why NJAC was declared unconstitutional. Lastly, the author has given various recommendations for balancing judicial accountability and its independence. The author has concluded by saying that the existing system needs to be reformed by taking inspiration from other judicial systems around the world, so as to make it more efficient and transparent.